The Regulatory State: From Constitutional Foundation to Administrative Overreach
“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self preservation, of saving our country when in danger, are of a higher obligation. … To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
Thomas Jefferson, to John B. Colvin, September 20, 1810
Since 1976, federal agencies have issued over 220,000 final regulations. That number comes from Federal Register data compiled by the Competitive Enterprise Institute — the closest thing we have to an official count. This figure represents formal rules that went through notice-and-comment procedures, not informal guidance documents or regulatory “dark matter” that flows from agencies daily. The real regulatory output affecting American businesses and citizens is significantly higher.
The question isn’t just how many regulations exist. It’s what gives unelected bureaucrats the authority to create binding law in the first place. The answer reveals a constitutional system that gradually abandoned its own principles, then recently began correcting course.
The Constitutional Foundation
Federal agencies derive their power through a chain of delegation rooted in Article I of the Constitution, which grants “all legislative powers” to Congress. Agencies have no inherent authority. They exist only because Congress created them through enabling statutes.
When Congress passes laws like the Clean Air Act or the Federal Food, Drug, and Cosmetic Act, those statutes establish agencies, define their missions, grant rulemaking authority, and set enforcement powers. Without enabling legislation, agencies have no power to act. This is the legal foundation that separates legitimate agency action from arbitrary bureaucratic overreach.
The Administrative Procedure Act of 1946 established the process agencies must follow when creating regulations. The APA requires notice of proposed rules, public comment periods, reasoned justification for final rules, and publication in the Federal Register. This framework was designed to ensure public participation and prevent agencies from issuing arbitrary decrees.
The Rise and Fall of Judicial Deference
For decades, the most significant factor in agency power was judicial deference — how much courts would defer to agency interpretations of law. This deference evolved through three distinct phases, each representing a different balance between judicial authority and administrative power.
The Skidmore Era (1944-1984)
The original framework came from Skidmore v. Swift & Co. in 1944. Justice Jackson established that agency interpretations were “entitled to respect only to the extent they have the power to persuade.” Courts would consider agency expertise but retained final authority to interpret statutes.
Under Skidmore, judges examined the thoroughness of agency reasoning, consistency with past interpretations, logical validity, relevant expertise, and supporting evidence. If an agency’s interpretation made sense, courts might follow it. If not, they would ignore it. Either way, courts made the final decision.
This system preserved judicial review while acknowledging that agencies possessed technical expertise courts might lack. It represented a reasonable balance between separation of powers and practical governance needs.
The Chevron Revolution (1984-2024)
Everything changed with Chevron U.S.A. v. Natural Resources Defense Council in 1984. The case involved EPA’s interpretation of “stationary source” under the Clean Air Act. Instead of examining what Congress intended, the Court established a new framework.
Chevron created a two-step process: First, determine whether Congress spoke clearly to the precise question. Second, if the statute is ambiguous, defer to the agency’s interpretation as long as it’s reasonable. This seemingly modest adjustment fundamentally altered the constitutional balance.
Chevron transformed agency interpretations from advisory opinions into binding law. Courts were required to defer whenever they found statutory ambiguity — and agencies had every incentive to claim ambiguity existed. The doctrine effectively transferred judicial power to executive agencies.
The practical consequences were enormous. Congress learned they could write vague statutes knowing agencies would fill the gaps. Agencies discovered they could expand their authority by claiming broad interpretive powers. Courts abdicated their constitutional role as interpreters of law.
Examples of Chevron’s impact include EPA treating carbon dioxide as a pollutant requiring massive regulatory programs, ATF reinterpreting firearm classifications after years of consistent interpretation, CDC claiming authority to halt nationwide evictions during COVID-19, and OSHA asserting power to mandate private employer vaccine requirements.
The Constitutional Correction (2024-Present)
The Supreme Court eliminated Chevron deference in Loper Bright Enterprises v. Raimondo in 2024. Chief Justice Roberts wrote that courts “may seek aid from agency interpretations when they have the power to persuade” — language identical to Skidmore’s 1944 standard.
This decision restored judicial authority over legal interpretation while maintaining space for agency expertise to inform court decisions. Agencies can no longer claim binding authority to interpret ambiguous statutes. Courts must actually judge rather than automatically defer.
The Nondelegation Problem
The deeper constitutional issue involves congressional delegation of legislative power. Article I grants “all legislative powers” to Congress, not to Congress and whatever agencies they choose to empower. Yet the modern regulatory state operates on extensive delegation of lawmaking authority to unelected bureaucrats.
The Supreme Court briefly enforced the nondelegation doctrine during the New Deal era, striking down laws that gave agencies excessive discretion without clear standards. However, after President Roosevelt threatened to pack the Court, judicial resistance collapsed. Courts developed the “intelligible principle” test, requiring only that Congress provide some guidance to agencies.
The “intelligible principle” standard became meaningless in practice. Courts approved delegations based on vague instructions like “in the public interest,” “fair and reasonable,” or “to protect health.” These phrases provide no real limitation on agency discretion.
Congress embraces delegation because it provides political cover. When regulations prove unpopular, members of Congress can blame agencies rather than take responsibility for laws they passed. This accountability laundering allows politicians to claim credit for popular goals while avoiding blame for unpopular implementation.
The Administrative Expansion
The regulatory state expanded dramatically from the New Deal through the Great Society and beyond. New Deal agencies included the Securities and Exchange Commission, Federal Communications Commission, and National Labor Relations Board. Great Society additions included the Environmental Protection Agency, Occupational Safety and Health Administration, and Consumer Product Safety Commission.
Each new agency brought vague enabling statutes, broad rulemaking power, and enforcement authority. The pattern became predictable: Congress would identify a problem, create an agency, grant expansive authority, and avoid making difficult policy choices by leaving details to bureaucrats.
The Federal Register, which publishes proposed and final regulations, grew from 2,620 pages in 1936 to over 95,000 pages by 2016. This explosion reflects not just more regulations but longer, more complex rules affecting broader swaths of American economic and social life.
Agency enforcement expanded alongside rulemaking. Federal agencies now employ thousands of investigators, administrative law judges, and enforcement personnel. They can impose civil penalties, issue compliance orders, and pursue criminal referrals without traditional judicial oversight.
International Perspective
Other developed democracies handle administrative law differently. British courts interpret statutes while agencies implement clear legislative directives. Canadian courts provide limited deference similar to pre-Chevron American practice. German administrative courts exercise genuine judicial review over agency decisions.
Only the United States developed a system where executive agencies could interpret their own legal authority with judicial blessing. This American approach represented not legal innovation but constitutional abandonment — trading separation of powers for administrative convenience.
The Path Forward
Eliminating Chevron deference is the beginning, not the end, of constitutional restoration. Several related doctrines require similar scrutiny.
Auer deference (formerly Seminole Rock) allows agencies to interpret their own regulations with heavy judicial deference. This doctrine creates perverse incentives for agencies to write vague regulations then interpret them expansively. Courts should interpret regulatory language just as they interpret statutory language.
The major questions doctrine prevents agencies from claiming extraordinary powers based on vague statutory language. Under this principle, when agencies assert authority over issues of vast economic or political significance, Congress must speak clearly. The doctrine forces legislative accountability for major policy decisions.
Nondelegation doctrine may experience revival as courts recognize that excessive delegation undermines democratic governance. Congress should make policy choices rather than delegating them to unelected bureaucrats. When legislative authority becomes too diffuse, democratic accountability disappears.
Practical Implications
The post-Chevron world will require judges to interpret statutes rather than defer to agencies. This means more careful statutory analysis, greater reliance on traditional interpretive tools, and genuine judicial review of agency claims. Courts will need to develop expertise in technical areas previously left to agency discretion.
Congress faces pressure to write clearer statutes now that agencies cannot freely interpret ambiguous language. Legislators may need to make difficult policy choices rather than punt controversial decisions to bureaucrats. This could improve democratic accountability but may also slow legislative action.
Agencies must justify their interpretations through persuasion rather than deference. They will need stronger legal arguments, better evidence, and more consistent reasoning. Some agencies may lose authority they claimed under Chevron, while others may find their core missions unaffected.
Regulated industries face both opportunities and uncertainties. Clear statutory interpretation may provide greater predictability, but agencies may push boundaries in other ways. Litigation over statutory meaning will likely increase as both sides test the new landscape.
Constitutional Principles
The regulatory state’s evolution illustrates how constitutional systems can drift from their foundational principles through incremental changes that seem reasonable individually but prove destructive collectively. Chevron deference appeared to solve practical problems but undermined separation of powers and democratic accountability.
The Constitution requires that laws be made by elected legislators, interpreted by independent judges, and executed by accountable officials. When agencies make law through interpretation, execute law through enforcement, and adjudicate law through administrative proceedings, constitutional boundaries disappear.
Restoration of constitutional governance requires more than eliminating bad precedents. It requires institutional commitment to separation of powers, legislative accountability, and judicial independence. Courts must interpret law, Congress must make policy choices, and agencies must implement clear directives within defined boundaries.
The American system works when each branch stays within its constitutional role. It fails when branches abdicate responsibility or usurp authority belonging to others. The regulatory state represents both abdication and usurpation — Congress avoiding hard choices while agencies claiming legislative power.
Conclusion
Over 220,000 regulations represent decades of accumulated agency authority operating beyond clear constitutional boundaries. The elimination of Chevron deference and related reforms begin restoring constitutional governance, but institutional change requires sustained commitment to separation of powers principles.
The regulatory state grew because it served political convenience rather than constitutional principle. Reducing it to constitutional size requires choosing principle over convenience. Congress must legislate, courts must judge, and agencies must execute — not the other way around.
Constitutional restoration is not about eliminating government or returning to the 1790s. It’s about ensuring that democratic institutions operate within their proper spheres, that elected officials make policy choices, and that unelected bureaucrats implement clear directives rather than making law through interpretation.
The system the Founders designed can handle modern challenges if modern officials respect constitutional boundaries. The alternative is continued drift toward administrative despotism dressed up as expert governance. The choice remains ours to make.